18 September, 2012

In September 2008, Mcebisi Skwatsha, the then newly elected African National Congress (ANC) chairperson in the Western Cape, stated that the ANC in the province has “been driven by factionalism, patronage and political assassination”. Skwatsha, of course, experienced this first hand in June of that fateful year when he was stabbed in the neck at an ANC meeting.

I have been mulling over Skwatsha’s prescient words in recent days as we witness a spike in political murders in KwaZulu-Natal. According to Willies Mchunu, KZN MEC for Community Safety, there have been 35 politically related murders since mid-2011. The most recent of these was Umtshezi Municipality Ward Councillor Jimmy Lembede who was shot dead by two men at his home whilst both his wife and five-year-old daughter were shot and wounded and his 11-year-old son was burned with boiling water. The viciousness of the act speaks volumes about the violent nature of our society and the barbarism which has come to characterize South African politics.

Unlike the 1980s and 1990s which witnessed political murders as the ANC and the Inkatha Freedom Party were engaged in a life-and-death struggle for political dominance, the current spate of assassinations seem to be more over greed as opposed to ideological difference. Indeed Frans Cronje, CEO of the South African Institute of Race Relations has cogently argued, “We have been hard pressed to find a single person killed over an idea. It all depends on tenders and corruption”.

In other words, being a councillor provides you with the means to divert state resources into your personal bank account. Conversely, losing your position as a councillor means this avenue for self-enrichment, at the expense of the taxpayer, is now closed. Small wonder then that during last year’s local government elections South Africa witnessed a spike of murders against local councillors by those left off from party lists.

Neither is KZN and the Western Cape the only provinces to be affected. In Mpumulanga, intra-ANC killings in the run-up to the 2011 local government elections moved Democratic Alliance (DA) leader Helen Zille to declare that, “The ANC has lost the meaning of their existence. Their sole focus is on money and that’s why there are political killings in the province. These killings are a clear sign of how corruption has grown in the ruling party”.

These tendencies within the ruling party, in particular, raise several disturbing questions. At what point will this politics of greed and assassination surface at provincial and national level? After all, alliances between the different factions contesting the Mangaung leadership conference straddle local, provincial and national levels. Given the ANC’s inability to curb this destructive phenomenon themselves, could the security services take decisive measures to end these political assassinations? Given their own politicisation, however, how can the security services be seen as impartial referees?

As the country gears itself for national elections next year, we should prepare ourselves for more political murders.

10 September, 2012

In the aftermath of the tragedy at Marikana, economic folly continues to afflict the minds of the tripartite alliance leadership. Following a meeting on Friday, the ANC, COSATU and the SACP leadership saw it fit to blame mining companies for the unrest sweeping across South Africa’s mines. Indeed, in their joint statement the ANC’s Gwede Mantashe, COSATU’s Zwelinzima Vavi and Communist Party boss Blade Nzimande accused mining houses of fanning the flames of conflict.

The patently illogical nature of such statements is obvious to all – mining companies have a profitable reason not to flame such unrest. After all each day the Marikana miners are on strike costs LONMIN millions in lost revenue. More importantly, there is sufficient evidence to suggest that South African corporations have been a force for good and that the stereotypical image of blood soaked capitalists is fallacious in the extreme. A recent Sunday Times study has demonstrated that more than 90 percent of 3200 companies surveyed across 278 business sectors have actually exceeded their corporate social investment. Business is not the problem – government is!

Such statements, however, do serve a political purpose – deflecting the blame from government. Unfortunately, since the ANC took over the reins of power in 1994, it has scarcely provided either political or socio-economic leadership to the pressing problems confronting this country. When faced with crises, convenient scapegoats are to be found to deflect blame from government failures such as the ever elusive third force – and now it is the turn of the mining houses to be blamed for the ANC not making good on its promise for a better life for its supporters.

At issue is the fact that the ANC government, the trade unions and the Communist Party refuse to deal with a central problem- that given the global recessionary environment, employers cannot afford massive salary increases. To be clear the Marikana workers are demanding a wage increase from R5405 per month to R12 500 per month – more than a 100 percent salary increase!

Should LONMIN cave in to this demand, labour unrest will spread throughout the country as similar outrageous demands are pushed forward by other AMCU copycats. South Africa cannot afford such salary increases or such labour disruptions especially in the context of a global economic recession. To put matters into perspective, a recent report from the Industrial Development Corporation pointed out how problems in the Eurozone are impacting on South Africa. Should our exports to the European Union drop by 5 percent, domestic growth will contract by R5.9 billion and 18 700 jobs will be lost. To compound matters, the Eurozone crisis according to economists will be with us for another decade, the US economy remains sluggish, whilst both India and China’s economies are beginning to slow down.

In this international context, the ANC and its tripartite allies see it fit to attack the business community – the very creators of jobs – for short-term political gain. This is the height of economic folly.

The recent political history in the Democratic Republic of Congo (DRC) has been marked by the forced resignation of Vital Kamerhe, former Speaker of the National assembly, in January 2009. The reason being that he publicly denounced the fact that the National Assembly was not informed about the agreement that allowed Rwandan troops to engage in joint military operations against the Democratic Forces for the Liberation of Rwanda (FDLR) on the territory of the DRC. This opposition was to show that President Joseph Kabila violated the Constitution by signing a secret accord between the DRC and Rwanda.

Indeed, the procedure of negotiation and ratification of treaties and international accords is provided for in Article 213 of the Constitution, and the procedure of the declaration of the war is provided by Articles 86 and 143 of the Constitution in the DRC. In both situations the National Assembly and the Senate must be informed. This did not happen.

The purpose of this post is to analyze the legal consequences of the opposition of the former Speaker of the National Assembly to the Government's decision to invite Rwandan troops into the country to pursue a Rwandan militia. This analysis will be made with reference to the constitutional duties of the President, who must ensure compliance with the Constitution as provided for by Article 69(2), and under his oath to observe and defend the Constitution and laws of the Republic as provided by Article 74 of the Constitution. Moreover, in this paper we will appreciate the recent declaration of the Opposition parties in DRC that calls for the impeachment of President Joseph Kabila for high treason.

1. The nature of the Government's decision to invite Rwandan troops into the DRC:
According to the Vienna Convention on the Law of Treaties (1969), a “treaty” means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation (Article 2a).

Thus, the decision of the two heads of state of the DRC and Rwanda that eventually resulted in the invitation of Rwandan troops to intervene in a joint military operation and to pursue a Rwandan Hutu militia, the FDLR, which has long contributed to instability in the eastern DRC and served as a threat to Rwandan security, is qualified as a bilateral treaty.

However, according to Article 213 of the Constitution, the President negotiates and ratifies treaties and international accord, and shall inform the National Assembly and the Senate. Indeed, the Constitution provides that the DRC has four institutions: the president of the Republic, the parliament, the Ggvernment, and the courts and tribunals (Article 68). As such, given that the President signed the aforementioned decision, or bilateral treaty, he was obligated to inform other institutions of the Republic, namely the National Assembly and the Senate.

Furthermore, the agreement between the two heads of state to invite Rwandan troops into the country to pursue the FDLR can be considered as a declaration of war. In the DRC, this kind of agreement entails a particular procedure. Indeed, in accordance with Articles 86 and 143 of the Constitution, “the President of the Republic declares war by Order deliberated in the Council of Ministers after the Supreme Council of Defense and authorization of the National Assembly and the Senate”.

Indeed, it should be noted that, according to the International Crisis Group, Presidents Kabila and Kagame concluded a secret agreement to strengthen their respective positions on the basis of the American proposition (African Report n°165, 2010). In my view, this secret agreement was a win-win situation, because it allowed for the arrest of Laurent Nkunda, former general and chairperson of the National Congress for the Defense of People (CNDP), and for the invitation of Rwandan troops to participate in a joint military operation against FDLR.

As the discussion shows, considering that the President has concluded a secret agreement without informing the other relevant institutions as provided by the Constitution, it is clear that President Joseph Kabila has violated the Constitution of the DRC. Furthermore, his constitutional duties is to ensure compliance with the Constitution (Article 69, 2), to observe and to defend the Constitution and laws of the Republic (Article 74), but when the President himself acts against his constitutional duties, this violation is called “Treason” as provided for by Article 165.

Indeed, the public opposition of Vital Kamerhe, as Speaker of the National Assembly, to a joint military operation against the FDLR in the eastern part of the DRC has had major consequences. Also, Vital Kamerhe has accused Rwanda of looting Congolese mineral resources when it supported rebel groups, and it is clear that the population was uncomfortable with the presence of Rwandan troops even if under an agreement.

Kamerhe's opposition was based on the assertion that the President violated the Constitution, and subsequently, he could be accused of high treason. In order to avoid the procedure of impeachment of the President for high treason, Vital Kamerhe was forced to resign as Speaker of the National Assembly.

2. Declaration of the opposition parties called for the impeachment of President Joseph Kabila for high treason:
Since May 2012, the DRC is facing a new rebellion (M23) with former CNDP rebels that had been integrated into the Congolese Army. The rebellion started as mutiny in the eastern part with the main claim being the full implementation of peace agreements of 23 March 2009 between the Government and the CNDP.

Indeed, according to the Congolese Government, the reports from NGOs and the UN, there is evidence that the M23 rebellion is being backed by Rwanda. However, on 31 August the Rwandan Government decided to withdraw the Rwandan forces deployed in the eastern part in North Kivu largely occupied by rebels. For the Rwandan Minister of Defence, the Rwandan forces were officially deployed to Rutshuru to hunt down the FDLR. This reveals the continued existence of a secret agreement between Presidents Kabila and Kagame in effect since 2009.

However, on 03 September 2012, as shown in the political declaration made by the leaders of the opposition parties, these leaders consider the complicity of those in power with the perpetrators is totally established. They have called for the impeachment of President Kabila accusing him and members of his government of complicity in the rebellion.

Indeed, as provided by Article 165 of the Constitution, there is high treason when the President has violated the Constitution. Due to this, opponents recommend that in the parliamentary session of September, the Parliament should trigger the mechanism of impeachment of President Kabila for high treason.

In conclusion, it seems that in the DRC history is being repeated. When authorities who are supposed to ensure compliance with the Constitution decide to intentionally violate its dispositions, there is clearly a problem. The Congolese population should stand together unanimously to promote the rule of law.

Philippe Tunamsifu Shirambere is a lecturer of law at the Faculty of Law at the Université Libre des Pays des Grands Lacs (ULPGL/RD Congo)